State ex rel. Ford Hopkins Co. v. Mayor & Common Council of Watertown

• Decision Date: 07 December 1937
• Citation: 276 N.W. 311,226 Wis. 215
• Parties: STATE ex rel. FORD HOPKINS CO. v. MAYOR AND COMMON COUNCIL OF CITY OF WATERTOWN.
• Court: Wisconsin Supreme Court

226 Wis. 215

276 N.W. 311

STATE ex rel. FORD HOPKINS CO.

v.MAYOR AND COMMON COUNCIL OF CITY OF WATERTOWN.

Supreme Court of Wisconsin.

Dec. 7, 1937.

Appeal from a judgment of the Circuit Court for Jefferson County; George Grimm, Judge.

Reversed.

This is an appeal by the relator, Ford Hopkins Company, from a judgment of the circuit court for Jefferson county, entered on the 26th day of March, 1936, in favor of the respondents, quashing relator's alternative writ of mandamus, with costs against the relator. It is a mandamus action to compel respondents, the Mayor and Common Council of the City of Watertown, to issue a restaurant license to the petitioner, appellant herein.

The petition alleges, among other facts, that it is a foreign corporation and licensed to do business in Wisconsin, among other things to conduct a mercantile business, drug business, soda fountain business, and restaurant business, and is now engaged in business in Wisconsin. That on the 7th day of January, 1936, petitioner entered into a certain lease agreement with Eugene Meyer and Virginia Meyer, his wife, whereby they leased the major portion of the premises commonly known as 212 Main street, in the City of Watertown, Wis. That they leased said premises for the express purpose of entering into the possession of same and carrying on therein a general drug, soda fountain, and restaurant business in accord with their custom throughout the State of Wisconsin and various other states. That on the 7th day of January, 1936, and after the execution of the lease above described, the Mayor and the Common Council of the City of Watertown passed what it designated as Ordinance 286.01 and subsequent sections which it caused to be published on January 9, 1936. It is further alleged that on the 27th day of January, 1936, petitioner made application to the Wisconsin State Board of Health for a permit to conduct a restaurant, serve sandwiches and light lunches, in the premises above described in the City of Watertown in connection with its drug store and soda fountain departments. That on February 18, 1936, the Wisconsin State Board of Health granted a permit to the petitioner to conduct said restaurant business at the place aforesaid. It is further alleged that on the 18th day of February, 1936, petitioner filed with the city clerk of the City of Watertown its application for a restaurant license, “being willing to comply so far as it reasonably could with said ordinance and with all of the provisions thereof, which might be reasonably deemed to be valid.” A copy of the application for a restaurant license is made a part of the petition. It describes the premises and further states:

“We further certify that there will be other business conducted in connection with the restaurant for which a license is sought and we certify that such other business will be a general drug, soda fountain, and mercantile business.

“We agree to comply with the laws of the State of Wisconsin, with all valid provisions of the ordinance of the City of Watertown and all of the rules and regulations of the City and State Board of Health regulating hotels and restaurants.”

It is further stated: “By this application we do not admit the validity of Ordinance 286, and particularly Sections 286.07 (a) and (d) ***. We are prepared to abide by all reasonable regulations made by the City of Watertown in the interest of public health and desire to conduct the restaurant business of said place in a sanitary manner and pursuant to all lawful health regulations made applicable to us and others similarly situated.”

In its application, petitioner further states: “We are not able to comply with the provisions of Section 286.07 (a) of the ordinance of the City of Watertown which requires us, as a condition for obtaining such license, to construct a solid partition from the floor to the ceiling without any openings of any kind therein, separating such restaurant from the mercantile business. We consider such requirement not a reasonable health or sanitary regulation.”

It is further alleged that petitioner's application was referred to the Health Commissioner of the City of Watertown on the 18th day of February, 1936, and that after having made an inspection of the premises “the said Health Commissioner reported to the defendants Mayor and Common Council that said application be denied for the sole reason that the applicant had not constructed a solid partition from the floor to the ceiling, separating said restaurant and soda fountain department from the rest of its business enterprises.” That the facilities at said location for the conduct of said restaurant business are such that the business could be and would be conducted in a sanitary manner, and that the State Board of Health of the State of Wisconsin had so determined when said body granted the license to the petitioner as set forth. It is also alleged that at the time petitioner filed its application for a license, other persons and business establishments were then, and now are, conducting restaurants where sandwiches and light lunches are served in stores in which are conducted mercantile businesses, some with and some without soda fountain business, and in both cases without there being a solid partition or any partition at all, separating restaurant department from the mercantile department, and licenses therefor have been granted by both the State Board of Health and the respondents herein.

That such action, denying a license to petitioner on the ground that no solid partition from floor to ceiling exists in petitioner's place of business, constituted an unlawful and arbitrary discrimination against petitioner and a denial of its lawful right to transact a lawful business in a lawful and sanitary manner as guaranteed to it by both the Constitution of the United States and the Constitution of the State of Wisconsin.

The respondents made a motion to quash the alternative writ of mandamus. The court granted said motion. Judgment was accordingly entered. The petitioner appeals.

Kenneth E. Port, of Watertown, for appellant.

Harold W. Hartwig, of Watertown, for respondent.

Drought & Drought, of Milwaukee, amicus curiae.

MARTIN, Justice.

The material provisions of the city ordinance approved January 9, 1936 are:

Section 286.01. “It shall be unlawful to operate or conduct a hotel or restaurant within the city of Watertown, unless a license therefor shall have been obtained from the common council of the city of Watertown.”

Section 286.02. “The term ‘Restaurant’ as used in this article shall include every place which is open to the public generally, and where food or foodstuffs, other than ice cream and candies, is sold or served for consumption on the premises, either for compensation or gratis.”

Section 286.07. “No license shall be issued to conduct, operate or maintain any restaurant.

“(a) Where the restaurant is operated in connection with any other business, except a hotel, unless there is a solid partition without any openings of any kind therein, from the floor to the ceiling separating the restaurant from such other business.

“(b) Where it appears that any dishes and silverware used in the operation of serving of food are not sterilized as required by the health commissioner of the city of Watertown.

“(c) Where any drugs or chemicals are mixed, dispensed or sold in any part of the premises to be occupied by said restaurant.

“(d) The provisions of this section shall apply only to restaurants commencing business after the effective date of this section.”

The ordinance further provides that: “Nothing in this article shall prohibit the sale of cigars, cigarettes, newspapers, candies, ice cream and beverages either in any restaurants or in any other business place where the same may now be sold and disposed of.”

The ordinance contains a severability clause which provides: “If any one of the provisions hereof shall be deemed unconstitutional, the validity of any of the remaining provisions shall not be affected thereby.”

A violation of any of the provisions is made a misdemeanor punishable by fine of not less than $10 or more than $100, or by imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment.

[1] Appellant's first contention is that it had commenced business prior to the effective date of the ordinance by reason of having entered into the lease of the premises in question on the 7th day of January 1936. In other words, that procuring the lease was the commencement of a restaurant business at the location designated in the lease. The ordinance is designed to regulate the restaurant business, not such preliminaries as obtaining a lease of the building or premises. There is no merit in this contention.

[2] The appellant contends that subsections (a), (c), and (d), quoted above, are class legislation, contrary to the due process of law provisions of section 1, article 1 of the State Constitution and contrary to section 1 of the Fourteenth Amendment of the Federal Constitution, in that said subsections deny it, as against other citizens, the equal protection of our laws. The appellant concedes that the City Council, under the police power delegated to every municipal corporation under the home rule act, has the right to legislate for the protection of the public health and the promotion of the general welfare of the community, but contends that the police power cannot be used as a guise to accomplish some unconstitutional end; that regulations must at all times be reasonable; that classifications cannot be based upon existing conditions only; that provision must be made for further acquisition to the class as other subjects acquire the characteristics which form the basis of the classification. This court has applied the following general rules upon which classifications may be based in the exercise of the police power:

1. All classification must be based upon substantial...